DocketNumber: No. 319646
Citation Numbers: 1996 Conn. Super. Ct. 7299
Judges: LEVIN, JUDGE.
Filed Date: 12/5/1996
Status: Non-Precedential
Modified Date: 4/17/2021
On April 18, 1985, the plaintiff Frank Pignataro and the defendant Suzzanne Cappiello (the defendant) intermarried. On December 29, 1985, a child, Jessica, was born to them. On October 2, 1986, the defendant applied for and was granted an ex parte order by the Superior Court (Harrigan, J.) enjoining the plaintiff from imposing any restraint on her person or liberty, from assaulting, molesting, sexually assaulting, or attacking her, from entering her dwelling or the dwelling of her parents, or from taking custody or control of Jessica. On October 4, 1986, the defendant brought an action for dissolution of marriage and for custody and support of Jessica. On October 16, 1986, the restraining order against the plaintiff was continued by the court. In addition, the plaintiff was afforded visitation with the minor child.
On November 17, 1986, the defendant was granted temporary custody of Jessica. The plaintiff was ordered to pay child support of $60.00 per week. On December 23, 1986, fearing that the plaintiff would remove the child from this jurisdiction, the defendant moved to terminate the plaintiff's visitation. On January 8, 1987, the court (Landau, J.) ordered that the plaintiff be afforded supervised visitation, at his expense, on Saturday mornings. On March 26, 1987, the court (Bassick, J.) found that the plaintiff was $600 in arrears in his child support obligation. On November 12, 1987, a copy of the court's order extending its earlier restraining order was mailed to the plaintiff at apartment # 3, 3061 Main Street, Bridgeport. The order and the envelope in which it was enclosed were returned with the envelope stamped "Returned to sender [-] moved not forwardable. . . ."
On January 13, 1988, the parties' marriage was dissolved. The terms of a separation agreement which they had executed were incorporated into the judgment of dissolution. Pursuant to that judgment, the defendant was given custody of Jessica, the plaintiff was afforded visitation with Jessica on Saturdays between 10:00 a.m. and 3:00 p. m. and was ordered to pay $70.00 per week as child support plus $10.00 per week toward the sum of CT Page 7301 $3,780.00 representing past due child support and reimbursement for certain expenses. Since there were no further proceedings in the case for more than 180 days after the entry of judgment, all appearances of counsel were deemed withdrawn after the expiration of that time period, by operation of law. Practice Book § 77.1
On March 17, 1990, the plaintiff visited with his daughter for the last time. On August 20, 1990, the defendant moved for termination of the plaintiff's visitation, alleging that he had "engaged in conduct with the minor child during the period of visitation which is not in the interest of said minor child." The defendant also moved to hold the plaintiff in contempt of court for failure to pay child support. She certified that a copy of these motions had been sent by U.S. mail, postage prepaid, to the plaintiff at 2260 Virginia Avenue, Bridgeport, Connecticut. At this time, the plaintiff did not reside at 2260 Virginia Avenue but lived in an apartment at 2260 Virginia Avenue. The mistake in the address was a clerical error. However, the plaintiff in fact received the motions in the mail and telephoned an attorney to discuss them. The motions were not accompanied by a summons and there was no other service on the plaintiff. The plaintiff did not appear in response to the motions. On November 8, 1990, the court (Bassick, J.) did not hold the plaintiff in contempt but found an arrearage "of $1,324.64 plus $500.00 counsel fees. Total of $13,524.64." On November 11, 1990, with the plaintiff again not appearing, Judge Bassick terminated the plaintiff's visitation with the child until further order.
Prior to the judgment of dissolution, but during the pendency of that proceeding, the plaintiff had resided with his sister on Fasano Drive in Greenwich. At the time of the judgment of dissolution in January 1988, the plaintiff resided on Ellsworth Street in Bridgeport. Between December 1988 and December 1989, he again resided with his sister on Fasano Drive in Greenwich. From February 1989 to January or February of 1990, the plaintiff lived on Reservoir Avenue in Bridgeport. Between January or February of 1990 and August or September of 1990, he lived at 2260 Virginia Avenue in Bridgeport. From February to March of 1991 to February or March of 1992, the plaintiff resided at 115 High Ridge Drive in Bridgeport, although he was unable to advise this court as to where he lived during Christmas 1992. From February or March of 1992 to May or June of 1992, he lived at the Honeyspot Road Motor Inn in Stratford. From May or June of 1992 to December 1992, the plaintiff resided at 511 West Main Street in Stamford. From about December 1992 to January 1993, he lived at 110 Elm Street in CT Page 7302 Fairfield. From January 1993 to January 1994, the plaintiff resided at 1807 Broadbridge Avenue in Stratford. From January 1994 to March 1996 he lived at 76 Birdseye Street in Bridgeport. From March 1996 to the time of the trial of this action, the plaintiff resided at 291 Horace Street in Bridgeport. At no time since his divorce until January 1993 did the plaintiff have a telephone listed in his name.
On March 5, 1992, the plaintiff was summoned to appear before a Family Support Magistrate because he was in arrears in his child support obligation. The plaintiff appeared and gave the Howard Johnson's Motor Lodge on Honeyspot Road in Stratford as his address. He requested but was denied an attorney.
Eight months later, on November 9, 1992, the defendant filed an application with the Danbury Probate Court to terminate the plaintiff's parental rights and an application seeking approval for her husband, the defendant Frank Joseph Cappiello, Jr., to adopt the child. The applications listed the plaintiff's address as "Howard Johnson's Motor Lodge, Honey Spot Road, Stratford, Connecticut," the same address which the plaintiff had given the Family Support Magistrate eight months earlier. The Probate Court issued citations directing that a proper officer summon the plaintiff to appear before the court at a hearing on the application for termination of parental rights and the application for adoption. The citation identified the plaintiff's address as "Howard Johnson's Motor Lodge, Honey Spot Road, Stratford, Connecticut." A deputy sheriff returned the citations, stating in his return: "The above is hereby RETURNED UNSATISFIED. Please be advised, according to the manager at Howard Johnson's Motor Lodge, Mr. Pignataro has not resided there since April, 1992. Mr. Pignataro was evicted at that time and the records at the Motor Lodge do not reflect a forwarding address. The Stratford Post Office has no record of a forwarding address. Therefore, the above matter is hereby RETURNED UNSATISFIED." The Probate Court, finding that the whereabouts of the plaintiff were unknown, ordered that there be notice by publication of the application for termination of parental rights in The Stratford Star, a newspaper with a general circulation in the plaintiff's last town of residence. On March 3, 1993, a notice was published in The Stratford Star.2
When the plaintiff failed to appear at the hearing scheduled for the petitions, the Probate Court proceeded to hear both applications. The court granted the application to terminate the CT Page 7303 plaintiff's parental rights and granted the application approving the adoption of the child by the defendant Frank Cappiello. The plaintiff was not given notice of the rendering of these decrees, and no appeal was taken by the plaintiff.
In 1994, the plaintiff first learned from an attorney that his visitation privileges had been terminated by the court. He engaged another attorney who filed a motion for modification of the child support order and a motion for modification of the visitation order. As a result of inquiries made by the plaintiff or his attorney, the plaintiff learned that his parental rights had been terminated. He did not appeal the Probate Court's decrees. Rather, he commenced this action.
The plaintiff seeks a judgment from this court setting aside the decrees of the Probate Court terminating his parental rights and allowing the adoption of the child by the defendant Frank Cappiello. Generally, "[a]ll orders, judgments and decrees of courts of probate, rendered after notice and from which no appeal is taken, shall be conclusive and shall be entitled to full faith, credit and validity and shall not be subject to collateral attack, except for fraud." General Statutes §
"The power of equity to relieve against judgments is thus stated in one of our earlier decisions: ``The general principle on this subject, and which controls our opinion in regard to it, is well stated, by Judge Story, in his Commentaries upon Equity Jurisprudence. "In all cases, where by accident, mistake, fraud or otherwise, a party has an unfair advantage in proceedings in a court of law, which must necessarily make that court an instrument of injustice, and it is, therefore, against conscience that he should use that advantage, a court of equity will interfere, and restrain him from using the advantage which he has thus improperly gained."' Tucker v. Baldwin,
The plaintiff's claim that the defendants had a fiduciary relationship rests on two bases. First, the plaintiff claims that since the defendant Suzzanne Cappiello was the petitioner before the Probate Court, she assumed a fiduciary obligation to him. Here, the plaintiff's "argument posits ``a proposition for which he offers no authority other than assertion.' State v. Levine,
In Etchells v. Wainwright,
"Upon receipt of a petition for termination of parental rights, the court of probate . . . shall set a time and place for hearing the petition." General Statutes §
The provision in § 45-716 (c) authorizing notice by publication "if personal service cannot be reasonably effected within the state" on the person entitled to notice must be read in harmony with the
While courts have often grappled with ascertaining the particular contours of due process, certain principles are elementary and well settled. For well over a century it has been recognized that "``it is a principle of natural justice of CT Page 7307 universal obligation, that before the rights of an individual be bound by a judicial sentence he shall have notice . . . of the proceedings against him.'" Parsons v. Lyman,
"In Mullane v. Central Hanover Bank Trust Co., [supra,]
In court in Mullane stated: "An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. . . . The notice must be of such nature as reasonably to convey the required information. . . .
"But when notice is a person's due, process which is a mere gesture is not due process. The means employed must be such as one desirous of actually informing the absentee might reasonably CT Page 7308 adopt to accomplish it. The reasonableness and hence the constitutional validity of any chosen method may be defended on the ground that it is in itself reasonably certain to inform those affected . . . or, where conditions do not reasonably permit such notice, that the form chosen is not substantially less likely to bring home notice than other of the feasible and customary substitutes.
"It would be idle to pretend that publication alone, as prescribed here, is a reliable means of acquainting interested parties of the fact that their rights are before the courts. It is not an accident that the greater number of cases reaching this Court on the question of adequacy of notice have been concerned with actions founded on process constructively served through local newspapers. Chance alone brings to the attention of even a local resident an advertisement in small type inserted in the back pages of a newspaper, and if he makes his home outside the area of the newspaper's normal circulation the odds that the information will never reach him are large indeed." Mullane v.Central Hanover Bank Trust Co., supra,
With respect to notice by publication, the court added that it "ha[d] not hesitated to approve of resort to publication as a customary substitute in another class of cases where it is notreasonably possible or practicable to give more adequate warning. Thus it has been recognized that, in the case of persons missing or unknown, employment of an indirect and even a probably futile means of notification is all that the situation permits and creates no constitutional bar to a final decree foreclosing their rights. . . .
"Those [persons] . . . whose interests or whereabouts couldnot with due diligence be ascertained come clearly within this category. As to them the statutory notice is sufficient." (Emphasis added.) Mullane v. Central Hanover Bank Trust Co.,supra,
"The general rule that emerges from Mullane is that notice by publication is not enough with respect to a person whose name and address are known or very easily ascertainable and whose legally protected interests are directly affected by the proceedings in question." Mason v. Wilson,
At this stage, long after the Probate Court rendered the decrees sought to be set aside, the issue is whether the defendant in fact used reasonable efforts to locate the plaintiff. Those decrees ought not be vacated because the Probate Court record, such as it is, does not indicate the efforts used. First, the plaintiff does not claim that he is entitled to such relief based solely on the Probate Court record. Second, to vacate the decrees at this juncture based on a deficiency in the Probate Court record, where the §
It is evident that the plaintiff, for whatever reasons, was a transient dweller. Between the beginning of 1990 to the date of the hearing in the Probate court on the defendant's petitions, he had resided at seven different residences. Eight months before the defendant filed the petitions, the plaintiff represented to a Family Support Magistrate that he resided at the Howard Johnson's Motor Lodge on Honeyspot Road in Stratford. On or about December 19, 1992, when a deputy sheriff attempted to serve the plaintiff there he was told by the manager of that facility that the plaintiff had not resided there since April 1992. The sheriff learned that the plaintiff had been evicted at that time and that the Howard Johnson's Motor Lodge had no forwarding address. Most notably, the plaintiff had not provided the Stratford Post Office with a forwarding address. These are matters reflected in the deputy sheriff's return of service. "The return is prima facie evidence of the facts stated therein." Jenkins v. BishopApartments, Inc.,
As observed supra, not until January 1993 did the plaintiff have a telephone listed in his name. Nor did he have any regular employment, or place of employment. In light of these facts, this controversy devolves into this question: What more should the defendant reasonably have done to locate the plaintiff? The CT Page 7311 plaintiff answers that the defendant should have inquired of his family in Connecticut, her former in-laws, as to his whereabouts. Where parties have been married and have had children, they have shared for some time the most intimate of personal and legal relationships, and each must therefore be presumed to have a great deal of information concerning the other. Bearstop v. Bearstop,
It is evident that during 1992, indeed during much of the period between 1990 and 1993, the plaintiff did not want to be located by the defendant. In this he succeeded. But "[p]arties cannot thus, by their seclusion from the means of information, claim exemption from the laws that control human affairs, and set up a right to open up all the transactions of the past. The world must move on. . . ." Case of Broderick's Will, of
Judgment may enter for the defendants.
BY THE COURT
Bruce L. LevinJudge of the Superior Court
Covey v. Town of Somers , 76 S. Ct. 724 ( 1956 )
Mennonite Board of Missions v. Adams , 103 S. Ct. 2706 ( 1983 )
Powers v. Ulichny , 185 Conn. 145 ( 1981 )
Miller v. McNamara , 135 Conn. 489 ( 1949 )
Town of West Hartford v. Coleman , 88 Conn. 78 ( 1914 )
Schroeder v. City of New York , 83 S. Ct. 279 ( 1962 )
Abba Gana v. Abba Gana , 251 Ga. 340 ( 1983 )
Mason v. Wilson , 116 Ariz. 255 ( 1977 )
Vachon v. Tomascak , 155 Conn. 52 ( 1967 )
Proctor v. Sachner , 143 Conn. 9 ( 1955 )
Etchells v. Wainwright , 76 Conn. 534 ( 1904 )
City of Hartford v. American Arbitration Ass'n , 174 Conn. 472 ( 1978 )
The MARY, Stafford, Mastf , 3 L. Ed. 678 ( 1815 )
Memphis Light, Gas & Water Division v. Craft , 98 S. Ct. 1554 ( 1978 )
Dohany v. Rogers , 50 S. Ct. 299 ( 1930 )
Misinonile v. Misinonile , 190 Conn. 132 ( 1983 )
Davis v. Kressly , 78 S.D. 637 ( 1961 )
Folwell v. Howell , 117 Conn. 565 ( 1933 )
Lewis v. Klingberg , 100 Conn. 201 ( 1923 )
Connecticut Light & Power Co. v. Costello , 161 Conn. 430 ( 1971 )